Opinion

Senator Jay Costa, Pa. 43rd District v. Secretary Pedro A. Cortes

143 A.3d 430
2016 Pa. Commw. LEXIS 310
2016 WL 1593766

Court: Commonwealth Court of Pennsylvania
Filed: Apr 20, 2016
Status: Published
Author: Brobson
On the bench: Brobson
Cited by: 3 cases
Authority: More cited than 49.4%

The opinion

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Senator Jay Costa, Pa. 43rd District, :

Senator Daylin Leach, Pa. 17th District, :

in their Official Capacities, and :

Senator Christine M. Tartaglione, :

Pa. 2nd District, in her Official Capacity :

and individually on behalf of :

qualified electors in the :

Commonwealth of Pennsylvania, :

Petitioners :

v. : No. 251 M.D. 2016

: Heard: April 19, 2016

Secretary Pedro A. Cortes, :

Senator Joseph B. Scarnati, :

Pa. 25th District, and :

Senator Jacob Corman III, :

Pa. 34th District, each in their :

Official Capacities, :

Respondents :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION FILED: April 20, 2016

BY JUDGE BROBSON

Presently before the Court for disposition is the application of the

Honorable Jay Costa, the Honorable Daylin Leach, and the Honorable Christine M.

Tartaglione, duly-elected members of the Pennsylvania Senate (Petitioners), for

special relief in the nature of a preliminary injunction. In their application,

Petitioners ask that this Court enjoin preliminarily the Secretary of the

Commonwealth, the Honorable Pedro A. Cortes (Secretary), from implementing

House Resolution 783 (“H.R. 783”). H.R. 783 is a concurrent resolution adopted

by majority votes in both the Pennsylvania House of Representatives, on April 6,

2016, and the Pennsylvania Senate, on April 11, 2016. Among other things,

H.R. 783 purports to remove “Proposed Constitutional Amendment 1” from the

April 26, 2016 General Primary Election ballot (April 2016 Ballot) and place the

same on the November 8, 2016 General Election ballot (November 2016 Ballot).

Proposed Constitutional Amendment 1, if approved by electors, would amend

section 16(b) of Article V of the Pennsylvania Constitution to provide that

Pennsylvania justices, judges, and magisterial district judges be retired on the last

day of the calendar year in which they attain the age of 75.1

This case does not concern legal validity of the processes and

procedures followed by the General Assembly, the Secretary, and the Attorney

General of Pennsylvania in securing Proposed Constitutional Amendment 1’s place

on the April 2016 Ballot.2 Instead, Petitioners have commenced this action in this

Court’s original jurisdiction to challenge the legal validity of H.R. 783, the

operative clauses of which provide:

RESOLVED (the Senate concurring), That the

Secretary of the Commonwealth remove the ballot

question for Proposed Constitutional Amendment 1 from

the ballot certification for the primary election on

April 26, 2016; and it further

RESOLVED, That the county boards of election

remove, to the extent possible, the ballot question for

Proposed Constitutional Amendment 1 from the ballot;

and be it further

Section 16(b) of Article V of the Pennsylvania Constitution currently provides that

Pennsylvania justices, judges, and magisterial district judges be retired on the last day of the

calendar year in which they attain the age of 70.

“There is no question that all constitutional and statutory requirements for placing the

proposed amendment on the primary ballot were followed.” (Petition for Review at 2.)

RESOLVED, That the [S]ecretary disregard any

vote on Proposed Constitutional Amendment 1 in the

primary election on April 26, 2016, and the [S]ecretary

not make a tally of votes cast on Proposed Constitutional

Amendment 1, and be it further

RESOLVED, That the General Assembly direct

the [S]ecretary to place Proposed Constitutional

Amendment 1 on the ballot for the general election on

November 8, 2016, in the following form:

Shall the Pennsylvania Constitution be

amended to require that justices of the

Supreme Court, judges, and magisterial

district judges be retired on the last day of

the calendar year in which they attain the

age of 75 years?;

and be it further

RESOLVED, That, to ensure compliance with

section 1 of Article XI of the Constitution of

Pennsylvania, the General Assembly direct the secretary

to publish the ballot question for Proposed Constitutional

Amendment 1 as revised along with the proposed

amendment and the plain English statement previously

prepared by the Office of Attorney General, in each of

the three months prior to the general election on

November 8, 2016; and be it further

RESOLVED, That, upon passage by a majority of

both houses of the General Assembly, this concurrent

resolution be transmitted to the Secretary of the

Commonwealth for implementation.

In Count I of their Petition for Review, Petitioners contend that

H.R. 783 unconstitutionally infringes on the rights of qualified electors who have

or will cast their votes in the April 2016 General Primary Election by absentee

ballot. Petitioners contend the right infringed is the right to have one’s vote

counted: “Qualified electors who have so far cast absentee ballots are entitled to

have their votes counted no less than if they had voted at their polling location. . . .

Absentee voters who have not yet cast their ballots should have the same rights.”

(Petition for Review ¶¶ 44, 45.)

In Count II, Petitioners contend that H.R. 783 violates Article III,

section 9 of the Pennsylvania Constitution, which provides:

Every order, resolution or vote, to which the concurrence

of both Houses may be necessary, except on the question

of adjournment, shall be presented to the Governor and

before it shall take effect be approved by him, or being

disapproved, shall be repassed by two-thirds of both

Houses according to the rules and limitations prescribed

in case of a bill.

It is undisputed that H.R. 783 was not presented to the Governor pursuant to this

provision of the Pennsylvania Constitution.

Count III of the Petition for Review includes a request for preliminary

injunctive relief, but also includes substantive challenges to H.R. 783 not found in

Counts I and II. Specifically, Petitioners contend that H.R. 783 compels the

Secretary to act contrary to his duties under Article XI, section 1 of the

Pennsylvania Constitution, relating to the process to amend the Pennsylvania

Constitution. Article XI, section 1 provides, in relevant part:

Amendments to this Constitution may be proposed in the

Senate or House of Representatives; and if the same shall

be agreed to by a majority of the members elected to each

House, such proposed amendment or amendments shall

be entered on their journals with the yeas and nays taken

thereon, and the Secretary of the Commonwealth shall

cause the same to be published three months before the

next general election, in at least two newspapers in every

county in which such newspapers shall be published; and

if, in the General Assembly next afterwards chosen, such

proposed amendment or amendments shall be agreed to

by a majority of the members elected to each House, the

Secretary of the Commonwealth shall cause the same

again to be published in the manner aforesaid; and such

proposed amendment or amendments shall be submitted

to the qualified electors of the State in such manner, and

at such time at least three months after being so agreed

to by the two Houses, as the General Assembly shall

prescribe; and, if such amendment or amendments shall

be approved by a majority of those voting thereon, such

amendment or amendments shall become a part of the

Constitution; but no amendment or amendments shall be

submitted oftener than once in five years. When two or

more amendments shall be submitted they shall be voted

upon separately.

(Emphasis added.) Petitioners contend that H.R. 783 purports to prohibit the

Secretary from complying with his duties under what is commonly known as the

Election Code,3 specifically Section 201(c) of the Election Code, 35 P.S.

§ 2621(c), relating to certification to county boards of election of “the form and

wording of constitutional amendments and other questions to be submitted to the

electors of the State at large” and Section 201(f) of the Election Code, 25 P.S.

§ 2621(f), which requires the Secretary to “canvass and compute the votes cast . . .

upon questions as required by the provisions of this act” and “to proclaim the

results of such primaries and elections.” Finally, Petitioners contend that under

Section 605 of the Election Code, 25 P.S. § 2755, the form of the ballot question is

to be determined by the Secretary and the Attorney General and not by the General

Assembly. With respect to each of these statutory provisions, Petitioners contend

that H.R. 783 affects a change to the law, which can only be done by bill and

through the procedures set forth in Article III of the Pennsylvania Constitution.

The merits of Petitioners’ claims are not before the Court. Instead, as

noted above, the Court now considers whether Petitioners are entitled to

preliminary injunctive relief in such form as would compel the Secretary, and by

extension the county board of elections, to present Proposed Constitutional

Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3554.

Amendment 1 to the electors of the Commonwealth for their approval or rejection

on the April 2016 Ballot unabated by H.R. 783. Petitioners have the burden of

proving their entitlement to such interim relief. Warehime v. Warehime, 860 A.2d

41, 47 (Pa. 2004). To meet this burden, Petitioners must establish each of the

following “essential prerequisites”:

First, a party seeking a preliminary injunction must show

that an injunction is necessary to prevent immediate and

irreparable harm that cannot be adequately compensated

by damages. Second, the party must show that greater

injury would result from refusing an injunction than from

granting it, and, concomitantly, that issuance of an

injunction will not substantially harm other interested

parties in the proceedings. Third, the party must show

that a preliminary injunction will properly restore the

parties to their status as it existed immediately prior to

the alleged wrongful conduct. Fourth, the party seeking

an injunction must show that the activity it seeks to

restrain is actionable, that its right to relief is clear, and

that the wrong is manifest, or, in other words, must show

that it is likely to prevail on the merits. Fifth, the party

must show that the injunction it seeks is reasonably

suited to abate the offending activity. Sixth and finally,

the party seeking an injunction must show that a

preliminary injunction will not adversely affect the public

interest

Summit Towne Centre, Inc. v. Shoe Show of Rocky Mount, Inc., 828 A.2d 995,

1001 (Pa. 2003) (citations omitted). If this Court determines that any one of these

essential prerequisites is lacking, Petitioners have failed to meet their burden.

Warehime, 860 A.2d at 46.

In assessing whether Petitioners have met their burden in this case, the

Court has considered the evidence adduced by the parties during the preliminary

injunction hearing on April 19, 2016, as well as the parties’ written and oral

argument on the matter. Based on the evidence, the Court finds that

implementation of the General Assembly’s will, as set forth in H.R. 783, at this

late date in the primary election season imposes substantial burdens on the

Secretary, his staff, and the people that work in county voter services and boards of

election throughout this Commonwealth. Moreover, the Court is not insensitive to

the fact that removing Proposed Constitutional Amendment 1 from the April 2016

Ballot and moving it to the November 2016 Ballot translates into a waste of over a

million dollars in taxpayer money spent to advertise a now nonexistent ballot

question.

Nonetheless, despite these undesirable consequences, of which the

General Assembly was no doubt aware when it considered and passed H.R. 783 by

bipartisan majorities in both houses, the General Assembly has determined that

Proposed Constitutional Amendment 1 shall be decided in November 2016, and

not in April 2016. Article XI, section 1 of the Pennsylvania Constitution vests

within the General Assembly the exclusive authority to determine the “time” and

“manner” amendments are to be submitted to qualified electors for approval.

Article XI, section 1 of the Pennsylvania Constitution provides the “complete and

detailed process for the amendment of that document.” Kremer v. Grant, 606 A.2d

433, 436 (Pa. 1992). As this Court noted in Mellow v. Pizzingrilli, 800 A.2d 350

(Pa. Cmwlth. 2002) (en banc):

Because a proposed constitutional amendment is

not a “law,” the provisions of Article III relating to the

enactment of legislation are inapplicable. . . . In this

respect, [amendment of the Pennsylvania Constitution] is

not a legislative act at all, but a separate and specific

power granted to the General Assembly, similar to the

impeachment and trial powers granted to the House of

Representatives and Senate, respectively, under Article

VI, Sections 4 and 5. As to the impeachment power, we

have held that the trial procedures are within the

exclusive power of the Senate and are not subject to

invasion by the Courts. Similarly, we believe that Article

XI has vested the power to propose amendments in the

General Assembly. Other than the express requirements

set forth in Article XI, the procedure to be used in

proposing such amendments is exclusively committed to

the legislature.

Mellow, 800 A.2d at 359 (citations omitted); see also Grimaud v. Commonwealth,

806 A.2d 923 (Pa. Cmwlth. 2002) (en banc) (following Mellow), aff’d, 865 A.2d

835 (Pa. 2005).

In Mellow, this Court considered several challenges to two

constitutional amendments approved by the electorate during the November 3,

1998 General Election. In one of the challenges, the petitioners in that case

contended that one of the amendments should be set aside because the joint

resolutions passed in 1998 and 2000 by the General Assembly did not contain

identical language. This Court rejected that argument, refusing to curb the General

Assembly’s power under Article XI, section 1 beyond the express limits set forth

in that constitutional provision. “Because Article XI does not require identical

language or content in the resolutions (as opposed to the proposed amendment

itself),” this Court opined, “there is no constitutional violation.” Mellow, 800 A.2d

at 359 (emphasis in original).

By its express terms, H.R. 783 sets the time at which and manner by

which Proposed Constitutional Amendment 1 is to be submitted to the electorate in

that it removes the question from the April 2016 Ballot and moves the question to

the November 2016 Ballot. Under Mellow, the power of the General Assembly to

set the time at which and manner by which amendments to the Pennsylvania

Constitution are to be submitted to the electorate is an Article XI, section 1 power.

The only express constitutional limitation on time is that it must be submitted at

least three months after final agreement by the two houses of the General

Assembly, which is not at issue here. Pa. Const. art. XI, § 1. In seeking to enjoin

H.R. 783, Petitioners ask this Court to place further limits on this power: a limit

that considers the burden placed on those charged by law to implement the General

Assembly’s exercise of its power; a limit that considers the waste of taxpayer

resources occasioned by the same; or a limit that would preclude the General

Assembly, once it chooses a particular election as the time for a vote, from

changing its collective, albeit by a majority, mind and moving the question to a

later election. Such limitations, reasonable as they may seem to some, are simply

untethered to the text of the Pennsylvania Constitution.

With this backdrop, the Court now considers whether Petitioners have

established all of the essential prerequisites to preliminary injunctive relief, looking

first to whether they have established a clear right to relief—i.e., likelihood of

success on the merits. “To establish a clear right to relief, the party seeking an

injunction need not prove the merits of the underlying claim, but need only

demonstrate that substantial legal questions must be resolved to determine the

rights of the parties.” SEIU Healthcare Pa. v. Commonwealth, 104 A.3d 495, 506

(Pa. 2014).

With respect to Count I of the Petition for Review, which alleges an

unconstitutional infringement of the rights of qualified electors, Petitioners have

not demonstrated a substantial legal question. Giving legal (constitutional) effect

to H.R. 783 means that Proposed Constitutional Amendment 1 will not be

considered part of the April 2016 Ballot. A fortiori, no elector has a right to vote

on that question or a right to have their vote on that question count as part of the

April General Primary election. In the absence of a right to vote, there cannot be

voter disenfranchisement.

With respect to Count II, which alleges a violation of Article III,

section 9 of the Pennsylvania Constitution for failure to present H.R. 783 to the

Governor, based on the Pennsylvania Supreme Court’s decision in Kremer and this

Court’s decision in Mellow, the Court concludes Petitioners have not demonstrated

a substantial legal question. The General Assembly’s power to dictate the time at

which and manner by which a proposed constitutional amendment will be

presented to the electorate derives from Article XI, section 1 of the Pennsylvania

Constitution. Article III of the Pennsylvania Constitution, relating to legislation, is

inapplicable. The gist of H.R. 783, as noted above, is the removal of Proposed

Constitutional Amendment 1 from the April 2016 Ballot and the placing of the

question before the electorate on the November 2016 Ballot. There is no

substantial legal question as to the General Assembly’s power and authority to

effect this change.

In Count III, Petitioners point to several operative provisions of

H.R. 783 that direct the Secretary and county boards of election on how to

implement the General Assembly’s decision to remove the question from the

April 2016 Ballot. Petitioners argue that these provisions conflict with or

otherwise eviscerate existing statutory and constitutional duties. The Court is not

convinced.

First, Petitioners contend that H.R. 783 compels the Secretary to act

contrary to his duties under Article XI, section 1 of the Pennsylvania Constitution,

relating to the process to amend the Pennsylvania Constitution. Two of the

Secretary’s constitutional duties under Article XI, section 1 relate to publication of

proposed amendments following each passage by the General Assembly. There is,

however, no contention in this case that the Secretary failed to comply with these

publication mandates with respect to Proposed Constitutional Amendment 1. The

third requires the Secretary to place a proposed constitutional amendment before

the electorate “in such manner, and at such time at least three months after being so

agreed to by the two Houses, as the General Assembly shall prescribe.” Pa. Const.

art. XI, § 1. As noted above, by H.R. 783, the General Assembly has set the

November 2016 General Election as the time that Proposed Constitutional

Amendment 1 should be placed before the electorate. Under Article XI, section 1

of the Pennsylvania Constitution, as well as Section 605 of the Election Code, the

Secretary must act consistent with the General Assembly’s wishes. The provisions

of H.R. 783 resolving that the Secretary remove the ballot question for Proposed

Constitutional Amendment 1 from the April 2016 Ballot and place the question on

the November 2016 Ballot does nothing more than recognize the Secretary’s

existing legal obligation.

Next, Petitioners contend that H.R. 783 purports to prohibit the

Secretary from complying with his duties under Sections 201(c) of the Election

Code. Section 201(c) of the Election Code requires the Secretary to do the

following:

To certify to county boards of elections for

primaries and elections the names of the candidates for

President and Vice-President of the United States,

presidential electors, United States senators,

representatives in Congress and all State offices,

including senators, representatives, and judges of all

courts of record, and delegates and alternate delegates to

national conventions, and members of State committees,

and the form and wording of constitutional amendments

or other questions to be submitted to the electors of the

State at large.

(Emphasis added.) On this issue, H.R. 783 provides that “the Secretary of the

Commonwealth remove the ballot question for Proposed Constitutional

Amendment 1 from the ballot certification for the primary election on

April 26, 2016.” As a result of H.R. 783, Proposed Constitutional Amendment 1

was, but is no longer, a question to be submitted to the electors of the State at large

on the April 2016 Ballot. Clearly, Section 201(c) of the Election Code does not

empower the Secretary to certify to the county boards of elections the form and

wording of a constitutional amendment that is not to be submitted to the electors of

the State at large. Again, then, H.R. 783 appears to do nothing more than echo

existing law with respect to the Secretary’s duties.4

Petitioners further contend that H.R. 783 purports to preclude the

Secretary from complying with his duty under Section 201(f) of the Election Code,

which requires the Secretary to “canvass and compute the votes cast . . . upon

questions as required by the provisions of this act” and “to proclaim the results of

such primaries and elections.” On this subject, H.R. 783 provides: “RESOLVED,

That the [S]ecretary disregard any vote on Proposed Constitutional Amendment 1

in the primary election on April 26, 2016, and the Secretary not make a tally of

votes cast on Proposed Constitutional Amendment 1.” (Emphasis added.) Like

our analyses above, we look to Section 201(f) of the Election Code and what it

does and does not require of the Secretary. By its terms, Section 201(f) of the

Election Code only requires the Secretary to canvass and compute the votes cast on

questions lawfully placed before the electorate—i.e., “questions as required by the”

Election Code. In light of H.R. 783, Proposed Constitutional Amendment 1 was,

but is no longer, a question before the electorate, regardless of its presence on a

ballot. Thus, the Secretary is under no legal obligation to “canvass and compute”

In his answer to the application for special relief, the Secretary acknowledges that the

official ballot certification to the county boards of elections can be modified to remove Proposed

Constitutional Amendment 1 from the certification. (Secretary’s Answer at 13, 16.)

votes cast on Proposed Constitutional Amendment 1 during the April 2016 Primary

Election. A corollary to this legal conclusion is that the Secretary has no authority

to canvass and compute votes cast on a question that is not before the electorate.

In his answer, the Secretary provides that he “would be able to comply with that

part of H.R. 783 that directs him to ‘disregard any vote on Proposed Constitutional

Amendment 1 in the primary election’ and to ‘NOT MAKE a tally of votes cast.’”

(Secretary Answer at 16.)

In his testimony during the preliminary injunction hearing, Jonathan

Marks, Commissioner for the Bureau of Commissions, Elections, and Legislation

with the Pennsylvania Department of State (Department), testified as to this

particular portion of H.R. 783. Mr. Marks also attested to the facts set forth in the

Secretary’s filed answer to Petitioners’ application for special relief. Based on

Mr. Marks’ testimony and the Court’s review of the relevant provisions of the

Election Code, the Court finds the language in H.R. 783 relating to canvassing,

computing, and tallying of votes ambiguous. The law, however, is not.

Section 1402(b) of the Election Code, 25 P.S. § 3152(b), requires each county

board of elections to submit returns received for state-level offices to the Secretary

by 3:00 a.m. on the day following the election. Nothing in Section 1402(b)

provides for the Secretary to “canvass,” “compute,” or “tally” the submissions

from the county board of elections pursuant to this section of the Election Code.

Based on the Secretary’s filing in this case, however, as well as

Mr. Marks’ testimony, to promote transparency and as a service to the public, the

Department, for years, has published these “unofficial” returns on the

Department’s web site as they are received from the counties. In essence, the

Department voluntarily makes public the returns reported by the counties before

those returns are actually “computed,” “canvassed,” or “tallied.” Under the

Election Code, the process of canvassing, computing, and tabulating return—i.e.,

counting—does not occur until days after the primary election.

Sections 1403-1405, 1409 of the Election Code, 25 P.S. §§ 3153-3155, 3159. The

Secretary’s affirmative obligation in this process is set forth in Section 1409 of the

Election Code, which provides:

Upon receiving the certified returns of any primary

or election from the various county boards, the Secretary

of the Commonwealth shall forthwith proceed to

tabulate, compute and canvass the votes cast for all

candidates enumerated in section 1408, and upon all

questions voted by the electors of the State at large, and

shall thereupon certify and file in his office the tabulation

thereof.

With respect to Section 1409, Mr. Marks testified credibly that if H.R. 783 were

not enjoined, the Department would not include Proposed Constitutional

Amendment 1 in this process. The Court sees no violation of law or dereliction in

constitutional duty should the Secretary exclude votes cast on Proposed

Constitutional Amendment 1 from the process in the Election Code for computing,

canvassing, and tabulating results of the April 2016 Primary Election. Indeed, as

noted above with respect to Section 201(f) of the Election Code, it appears to the

Court that the Secretary has no authority, and thus no duty, to canvas and compute

votes cast on a question that is not before the electorate. By virtue of the General

Assembly’s passage of H.R. 783, that question is no longer before the voters in the

April 2016 Primary Election.

The Court now returns to the Department’s practice of reporting

election night returns received from the counties. According to the Secretary, and

confirmed by Mr. Marks at the preliminary injunction hearing, to facilitate the

counties’ compliance with Section 1402(b) of the Election Code and to provide the

public service of real-time access to election returns, the Department has

developed an election night return software system (ENR system). The ENR

system collects the election night returns reported by the counties under the

Election Code and maps them to the Department’s web site, where the public can

view those returns in real time. To ensure that the county data is received and

reported accurately on the Department’s web site, the Department extensively

stages and tests the ENR system in advance of election day. For the April 2016

Primary Election, the ENR system is staged to collect and report any returns

received by the counties and reported to the Department under Section 1402(b) of

the Election Code. Fifty-five out of sixty-four counties that use the Department’s

ENR system to comply with Section 1402(b) of the Election Code have

successfully tested the ENR system. Mr. Marks testified that the Department could

attempt, even at this late date, to change the coding of the ENR system to remove

from the Department’s web site returns reported by the counties with respect to

Proposed Constitutional Amendment 1.5 Doing so, however, will require over two

hundred hours and a total of two days to develop and test. It also comes at some

risk to the integrity of reporting all election night data on the Department’s web

site.

It is not at all clear to the Court that the portion of H.R. 783 resolving

that the Secretary “disregard” and “not make a tally” of votes cast on Proposed

Constitutional Amendment 1 relates to the ENR system, which is simply a device

According to the Secretary and Mr. Marks, however, it is “highly unlikely” that the

Department could, at this late date, alter the format of the ENR file the participating counties use

to report results to the Secretary in compliance with Section 1402(b) of the Election Code to

remove the returns on Proposed Constitutional Amendment 1.

to compile and publicly report each county’s compliance with Section 1402(b) of

the Election Code. Like other operative portions of H.R. 783 directed toward the

Secretary, one can reasonably read this portion to provide only that the Secretary

comply with the above-cited sections of the Election Code relating to tabulation,

computation, and canvassing. To the extent that the General Assembly intended

the provision to apply also to the ENR system, the Court sees no reason to enjoin

it, as it seems to the Court to be a purely advisory provision without the force and

effect of law. Article XI, section 1 of the Pennsylvania Constitution does not grant

the General Assembly the power to direct unilaterally an executive branch agency

to refrain from publicly reporting data transmitted to the agency by county boards

of election pursuant to statute. See, e.g., Jefferson Cnty. Court Appointed

Employees Ass’n v. Pa. Labor Relations Bd., 985 A.2d 697 (Pa. 2009) (discussing

separation of powers built into state government).

As the Court noted during the preliminary injunction hearing, given

the proximity to the primary election and already-cast absentee ballots, and

regardless of remedial measures that will be taken to advise the public that

Proposed Constitutional Amendment 1 is not before the electorate on the

April 2016 Ballot, votes have and will be cast in favor of and against the measure.

It is also invariably true that many voters will go to the polls on April 26, 2016,

and not vote on the measure. This means, then, that whatever data county boards

of election report to the Secretary pursuant to Section 1402(b) of the Election Code

with respect to Proposed Constitutional Amendment 1 will be both legally and

practically unreliable. As noted above, however, the act of publicly posting

Section 1402(b) election night returns from the counties on the Department’s

website is a voluntary one. The Court agrees with the Secretary that the primary

goal is to ensure an orderly and lawful election process. At this point, and in light

of the foregoing, whether any changes should be made to the ENR system as a

result of H.R. 783 is best left to the discretion of the Secretary.

Petitioners’ final substantive challenge in Count III of the Petition for

Review is their contention that H.R. 783 violates Section 605 of the Election Code,

in that it dictates to the Secretary and the Attorney General the form of the ballot

question for Proposed Constitutional Amendment 1 on the November 2016 ballot.

Section 605 of the Election Code provides:

Unless the General Assembly shall prescribe

otherwise with respect to any particular proposed

amendment or amendments and the manner and time of

submitting to the qualified electors of the State any

proposed amendment or amendments to the Constitution

for the purpose of ascertaining whether the same shall be

approved by a majority of those voting thereon, the said

amendment or amendments which have heretofore, or

which may hereafter be proposed, and which have not

been submitted to the qualified electors of the State, shall

be submitted to the qualified electors of the State for the

purpose aforesaid, at the first municipal or general

election at which such amendment or amendments may

be legally submitted to the electors, which election shall

occur at least three months after the date upon which

such proposed amendment or amendments shall have

been agreed to for the second time by a majority of the

members elected to each house of the General Assembly,

as provided in Article Eighteen, section one of the

Constitution. Said election shall be conducted on said

election day in the manner prescribed by the provisions

of this act. Such proposed constitutional amendments

shall be printed on the ballots or ballot labels in brief

form to be determined by the Secretary of the

Commonwealth with the approval of the Attorney

General.

(Emphasis added.) Because this challenge relates to the November 2016 General

Election, no immediate or imminent harm is extant, such that the Court must

preliminarily enjoin enforcement of the portion of H.R. 783 in question.

Based on the foregoing analysis, the Court concludes that Petitioners

have failed to meet their burden of proving a clear right to relief/likelihood of

success on the merits with respect to the substantive challenges in their Petition for

Review or have failed to prove immediate or irreparable harm related thereto that

must be abated by preliminary injunctive relief. Accordingly, because Petitioners

had the burden of proving all essential elements to preliminary injunctive relief,

Petitioners’ application for special relief in the nature of a preliminary injunction

will be denied.

Although, in light of the foregoing, the Court need not analyze the

other essential elements to preliminary injunctive relief,6 some additional, albeit

brief, analysis is appropriate. As noted above, our Pennsylvania Constitution vests

broad power within the General Assembly to decide, by majority vote, the time and

manner a proposed constitutional amendment will be placed before the electors of

this Commonwealth. In this case, the General Assembly has exercised that power

through H.R. 783. There are clearly burdens and consequences that result from the

unfortunate timing of the General Assembly’s action. Such burdens and

consequences that flow from the constitutional actions of any branch of

government, however, are not “harms” that can be considered, let alone abated, by

enjoining the exercise of a constitutional prerogative. Treating them as such

invites this Court to second guess the wisdom of the General Assembly’s

decisions. The Court is not empowered to do so. See Sweeny v. Tucker, 375 A.2d

Allegheny Cnty. v. Commonwealth, 544 A.2d 1305, 1307 (Pa. 1988).

698 (Pa. 1977) (discussing political question doctrine); Grimaud v.

Commonwealth, 865 A.2d 835, 847 (Pa. 2005) (applying political question

doctrine in challenge to constitutional amendment). A critical role of this Court is

to save the public from unlawful or unconstitutional decisions by the other two

branches of government, but not unwise ones.7 When a coordinate branch of

government acts lawfully, it reaps what it sows.

In short, the Court is not convinced, at this preliminary stage of these

proceedings, that any person’s rights have been compromised by the General

Assembly’s passage of H.R. 783. Based on the evidence adduced during the

preliminary injunction hearing, the Court is satisfied that additional burdens,

consequences, and in some respect hardships will be borne by the Secretary, the

Department, the county boards of elections, and Pennsylvanians to effect the will

of the General Assembly reflected in H.R. 783. These, however, are not “harms”

that may be considered or abated where, as here, they flow from the exercise of a

constitutional prerogative of the General Assembly. Even if the Court were to

consider them harms for purpose of preliminary injunctive relief, greater harm of a

constitutional dimension would result if this Court were to enjoin enforcement of

the otherwise lawful action of a coordinate branch of government. Finally,

enjoining H.R. 783 would not be in the public interest as it would only foment

further uncertainty among the public as to whether they should vote on Proposed

Constitutional Amendment 1 and whether, if they do, their votes will be counted.

Less than one week before the Primary Election, the voters deserve certainty and

This is not to suggest that H.R. 783 is bereft of reasons supporting the General

Assembly’s action. The Court’s reference to “unwise” actions is to an undefined class of

government actions that, although lawful, some may complain are unwise and seek redress from

the courts on that basis alone. The courts simply are not the appropriate venue to remedy such

complaints.

finality. Finally, the public interest is best served by adhering to the text of the

Pennsylvania Constitution and respecting the power conferred by the electorate on

the General Assembly in Article XI, section 1 of that document.

As a final matter, the Secretary, in his answer to the application for

special relief as well as during oral argument, sought “guidance” from the Court as

to how he can or should aid and advise county boards of election in implementing

H.R. 783. The Court does not normally engage in the practice of providing this

type of advice, particularly in the absence of any formal request for such relief.

Nonetheless, the Court will remind the Secretary that during this primary election

cycle, the Court has issued at least two orders involving the removal/withdrawal of

candidates from the April 2016 Ballot, which included certain directives to the

Secretary and county boards of election, including the following language:

[]. If the Candidate’s name cannot be removed

from the ballot, the County Boards of Elections are

directed to post notice within each voting station that

Candidate has withdrawn from the election and that

casting a vote for Candidate, other than a write-in vote,

will not be counted.

[]. If after the date of this Order additional

absentee ballots are distributed, within those absentee

ballots shall be a notice that Candidate has withdrawn

from the election and that casting a vote for candidate,

other than a write-in vote, will not be counted.

See In re: Nomination Petition of Lindy Li, (Pa. Cmwlth., No. 105 M.D. 2016, filed

April 1, 2016) (Brobson, J.); In re: Nomination Petition of Steven B. Larchuck, (Pa.

Cmwlth., No. 221 M.D. 2016, filed March 31, 2016 (Pellegrini, S.J.). The

Secretary is certainly free to consider the Court’s prior orders touching on the

subject of the removal of candidates from the April 2016 Ballot in determining

how best to work with county boards of elections to advise voters, absentee and

otherwise, that Proposed Constitutional Amendment 1 is not on the April 2016

Ballot, regardless of what the actual ballot may say, and that any votes cast on that

question will not be canvassed, counted, or tabulated.

Accordingly, the Court denies Petitioners’ application for summary

relief in the nature of a preliminary injunction.

P. KEVIN BROBSON, Judge